Witness Interviews and Unexpected Problems and more...



Witness Interviews and Unexpected Problems

Below is an article written by my better half, Colleen Collins, with whom I co-owned a legal investigations agency for a decade before I returned to the practice of law. She wrote it several years ago for a national writing organization so the writers could better understand how a private investigator goes about interviewing witnesses, as well as how an investigator might handle problems that could deep-six the interview.

The Art of Interviewing: The Pitfalls, Pratfalls, and Shortfalls

by Colleen Collins, all rights reserved

Private investigators often conduct interviews, typically on behalf of attorneys for cases being litigated. To conduct successful interviews, a P.I. must have good people and communication skills, eye and magnifying glassand know how to elicit the desired information without falling prey to errors of ethics and omissions, equipment malfunctions, and simple human error, which we’ll call pitfalls, pratfalls, and shortfalls for this article. Although these failings can undermine a real-life P.I.’s investigation, they’re great in fiction because they can add depth to a character, introduce a plot twist, or notch up the tension.

Pitfalls

Pitfalls are unsuspected traps in an interview that typically surface after its conclusion. For example, an investigator completes an interview with a friendly witness who identifies a criminal. But the P.I.’s success is short-lived when she later learns this witness changed his story, and now claims the investigator misrepresented what was said, or accuses the investigator of being threatening or intimidating. Why would a seemingly friendly witness do this? A few possibilities are to cover his involvement in a crime, to protect the accused or the real perpetrator, or to get out of being subpoenaed to court. Regarding the latter, witnesses who have failed to show up in the past for their own court obligations might be concerned that testifying at others’ trials means they will be taken into custody on the spot for their own problems. And they’re right.

Unfortunately, the law will step in if there’s reason to believe that an investigator caused an average, reasonable person to become fearful, in which case the investigator can be charged with intimidating a witness. Not a good scenario for a real-life P.I., but great fodder for a fictional one.

Here’s a few tips for how an investigator might protect herself from such pitfalls:

  • Choosing a public place, such as a restaurant, for an interview. People tend to be on their better behaviors when others are around.
  • Documenting the interview–for example, having an associate join the interview or film/record it from nearby. By the way, this filming/recording needs to be conducted in a public place (a coffee shop, a public parking lot) to avoid charges of eavesdropping.
  • Researching the witness ahead of the interview. Knowing a witness’s soft spots helps a P.I. avoid allegations of threats, manipulation, or intimidation.

Pratfalls

PI conducting interviewThese are the dumb mistakes investigators sometimes make in real life, which can add humor, conflict or tension in a story. For example, a P.I. rushes out to an interview and forgets to put fresh batteries into a digital recorder. Later, just as the P.I. has persuaded the witness to open up…the device dies. Or a P.I. tapes an interview in a noisy bar. Later, he realizes the bar background noises have blocked critical portions of the recording. For the malfunctioning recorder, an investigator might start taking notes. For the blocked recording, an investigator might piece together from memory portions of the interview, or better yet, pay a digital forensics expert to remove the background frequencies.

A more serious pratfall is not checking ahead of time if a witness or party to the case is represented by an attorney. If an investigator interviews a represented individual, the judge presiding over the case is likely to exclude the interview from evidence. Also, the investigator and the attorney she works for could be disciplined by their respective licensing authorities.

Shortfalls

In a courtroom, a lawyer should never ask a question he doesn’t know the answer to. The opposite is true for a P.I.–outside the courtroom, witnesses may hint at an important fact, or inadvertently let something slip. A sharp investigator catches that, and follows up with questions on that thread.


 

A Lawyer’s Primer for Writers: Kindle Countdown Deal

A Lawyer’s Primer for Writers: From Crimes to Courtrooms is a Kindle Countdown Deal March 1 – 7, 2015. What’s a countdown deal? The price starts at 99 cents on the first day of the sale (March 1) and incrementally increases each day until it is again the regular price ($7.95). Below is a breakdown of dates and costs – to order a copy, click here.

A Lawyers Primer Countdown Deal March 1-7 2015

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Managing Partner at Shaun Kaufman Law
Shaun Kaufman has 30 years of in-court experience, with hundreds of hours spent defending numerous high-profile cases including homicide, white-collar theft and RICO offenses. Specialties: Criminal defense, personal injury, business litigation, DUI.

Shaun Kaufman Law: 303-309-0430
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A Lawyer’s Primer for Writers #BookSale

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Starting March 1, A Lawyer’s Primer for Writers: From Crimes to Courtrooms is a Kindle Countdown Deal. It starts at its lowest sale price, 99 cents, on March 1, with the price increasing incrementally each day until it reaches its regular price, $7.95, on March 7.

“Put together with the user in mind, this intelligently organized handbook for practicing writers will make you sound like a practicing lawyer. Use it to transform your courtroom characters from stereotypes into engaging people.” ~Warwick Downing, former DA in Colorado and author of The Widow of Dartmoor, a sequel to Hound of the Baskervilles

Below is a breakdown of dates and prices – early birds get the best deals! To order, click here.

A Lawyers Primer Countdown Deal March 1-7 2015

 

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Valentine’s Day Date…or Court Date?

Happy Valentines Day Vector design lettering greeting card template.
  Creative Valentine Holiday Handwritten 3D Typography.

Valentine’s Day is a wonderful time to share an evening with your special one, but it can also go south quickly. Each year, more than a few participants in Valentines’ celebrations end up in police cruisers, and ultimately in lawyers’ offices, being charged with everything from DUIs to domestic assaults.

This article offers a few tips on how to keep Valentine’s Day from turning into a future court date:

  • Keep the evening simple, romantic and understated. Don’t let high expectations for Valentine’s Day create stress and resentment, which can produce anger and blame. Soak those ill feelings in alcohol and you have a recipe for potential domestic violence. (Here is a lawyer’s question for you: Can candy or roses be considered deadly weapons? Answer: yes. Anything that is capable of acting as a weapon to cause serious bodily injury can be considering in a court of law to be deadly weapon.) Instead, try planning a unique, easy-to-organize celebration, for example:
    • A picnic dinner in a botanical garden
    • Cooking dinner together using a recipe the two of you have always wanted to try
    • Planning something out of the norm like taking a ghost tour of a historical building.
  • Don’t let drunk driving ruin your special night with an arrest or accident. Because Valentine’s Day is known for excessive alcohol consumption and DUI charges, police departments regularly assign extra patrol officers on the streets. These officers don’t care about your love life. If you drink and drive, they’ll put you in handcuffs. Therefore, minimize the alcohol consumption or better yet, think about taking a cab, horse-drawn carriage or limo.
  • Sober people have fewer domestic violence incidences. Geri Redden, a family violence counselor, determined that “Alcohol is involved…in a large percentage of these [domestic violence] crimes and certainly in the most violence of incidences.” In short: Don’t drink and argue!

Romance is wonderful, but face it: Spending Valentine’s night in jail is not the same as spending it spooning on the couch, watching Casablanca and drinking champagne.

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Shaun Kaufman has 30 years of in-court experience, with hundreds of hours spent defending numerous high-profile cases including homicide, white-collar theft and RICO offenses. Specialties: Criminal defense, personal injury, business litigation, DUI.

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Lessons for Every Lawyer from My Cousin Vinny

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In honor of Bill Belichick’s reference to My Cousin Vinny in his notable press conference today about deflated balls, I’m re-posting my article on what the movie teaches us about the law. My Cousin Vinny is also listed as one of our top 10 legal films for writers in my nonfiction book, co-authored with Colleen Collins, A Lawyer’s Primer for Writers: From Crimes to Courtrooms.

We’re Not Talking Courtroom Etiquette

The film My Cousin Vinny, released in 1992, starred Joe Pesci, Marisa Tomei and Fred Gwynne. It’s a humorous courtroom drama about rough-around-the-edges New York lawyer Vincent LaGuardia “Vinny” Gambini (played by Pesci), fresh out of law school, who’s asked by his nephew and his nephew’s friend to save them from wrongful murder charges in a “redneck” Alabama court system.

Vinny, whose law license is still wet with ink, gives one of the pithiest, funniest opening statements I’ve ever heard, in real life or fiction:

Everything that guy just said is bullshit. Thank you.”

Okay, so Vinny isn’t exactly a shining example of courtroom etiquette, but the movie has been praised by lawyers, this one included, for adhering to the realities of courtroom procedure and trial strategy.

Realistic Courtroom Confrontations

US Supreme Court Justice Antonin Scalia cited My Cousin Vinny as an example of the principle that a client can choose his own lawyer. When the American Bar Association (ABA) journal invited lawyers to vote for their favorite fictional lawyers, Vinny Gambini ranked number twelve, with lawyers admiring Vinny’s technically correct courtroom confrontations.

Let’s look at one of those, starting with an expert witness introducing his qualifications:

Witness: I am a special automotive instructor of forensic studies for the Federal Bureau of Investigation.

Vinny: How long have you been in this position?

Witness: 18 years.

Vinny: Your honor, may we approach the bench please?

Judge: If you wish.

Vinny: I object to this witness being called at this time. We’ve been given no prior notice he’d testify, no discovery of any tests he’s conducted or reports he’s prepared, and as the court is aware, the defense is entitled to advance notice of any witness who will testify, particularly those who will give scientific evidence, so that we could properly prepare for cross-examination, as well as giving the defense the opportunity to have the witness’s reports reviewed by a defense expert, who might then be in a position to contradict the veracity of his conclusions.

Judge: Mr. Gambini, that is a lucid, intelligent, well-thought-out objection.

Vinny: Thank you, your honor.

Judge: Overruled.

There’s more to learn by watching this movie: Gambini’s interviews of clients, preparation of case theory, and his cross-examinations that reveal witnesses’ vulnerabilities.

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Managing Partner at Shaun Kaufman Law
Shaun Kaufman has 30 years of in-court experience, with hundreds of hours spent defending numerous high-profile cases including homicide, white-collar theft and RICO offenses. Specialties: Criminal defense, personal injury, business litigation, DUI.

Shaun Kaufman Law: 303-309-0430
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Readers’ Favorite Articles in 2014

Below are the most-read articles in 2014 here at Shaun Kaufman Law. Thank you to my readers for your ongoing support, and here’s to everyone’s success, good health and happiness in 2015!

Top 10 Articles

Readers’ favorite type of article this year were on subjects involving the police. Throughout the year, the most popular article each week vacillated between my tips for what to wear to court and how to not be a cop magnet while driving.

Failing to use a turn signal is one reason police pull over vehicles

#10: Neighbors Gone Bad: How to Prevent Legal Disputes

#9: Sentencing: Tips for Preparing a Mitigation Package

#8: What Happens When the Police Shoot a Citizen

#7: Do It Yourself DUI/DMV Representation: Top Three Mistakes People Make

#6: Colorado Restraining Orders: Use and Abuse

#5: Should You Lie or Not Talk to the Police?

#4: Colorado Temporary vs. Permanent Protection Orders

#3: Lawyers and Private Investigators: A Symbiotic Relationship

#2: Sartorial Tips from a Lawyer: What to Wear to Court

#1: Don’t Be a Cop Magnet: Top 10 Reasons Police Pull Over Vehicles

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Managing Partner at Shaun Kaufman Law
Shaun Kaufman has 30 years of in-court experience, with hundreds of hours spent defending numerous high-profile cases including homicide, white-collar theft and RICO offenses. Specialties: Criminal defense, personal injury, business litigation, DUI.

Shaun Kaufman Law: 303-309-0430
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